Kevin's Divorce Blog

ERASED follow up

2011-09-01T11:22:00.000-07:00

The following comment was sent to me via email by Patricia Manzo, Esq., an attorney in private practice in Jericho, NY who is frequently a court appointed Attorney for the Child. I reproduce it here with her permission:

I agree. There are an awful lot of Moms who will swear they are the best Moms in the world yet they fail to see how destructive they are truly being by doing everything they can to put a wedge between their soon to be ex-husbands and their kids and they do have the upper hand because they usually are the custodial parent. As you have heard me say many, many times: a girl learns how to be a Mom and a wife by watching her own Mom. A boy learns how to be a Dad and husband by watching his own Dad. The very same people who revile drunks, drug addicts or abusers (usually because they grew up in an alcoholic/drug/abusive environment) are the same ones who marry the very same type because it is a familiar and comfortable place to be. They just don't "get it" that the very destructive behavior they are exhibiting in the "best interest" of their children is the very thing that will send their children into that very same type of "familiar" relationship and the dysfunction will continue. And people wonder why the cycle continues? Its because the parents are too selfish to permit their own children to freely love them both. They would rather expend every last cent and shred of strength into grinding the other parent into the earth. On top of it all, these are the same people who run up extraordinary legal fees in this sick process, blame their own lawyer for having the nerve to bill them and then reneg on the payment of their outstanding debt! People who sink to this level truly get what they deserve. So when their kid is pregnant at 16, or addicted to weed, or in a gang (because its a "real" family and "they" understand), in jail or worse, they'll look at each other and say "What happened? We loved them so much. How could they do this to us?" Once again making it about them and putting themselves first. The truly good parent will do everything possible to insure the kids know, love, interact with and respect the other parent. Children who are free to love both their parents, who have free and unhampered access to both whenever he or she wants it, is able to move freely between both parents without guilt or anxiety is the success story of the future. Why? because he had parents who gave a damn. Thanks for listening.

ERASED: THE ELIMINATION OF FATHERS BY DIVORCED WOMEN

2011-08-31T13:12:00.000-07:00

As a divorce attorney, I often ponder the social implications of this horrible process. I have observed (and experienced myself) the marginalization of fathers from their children by mothers hell bent on revenge. Because of the powerful influence a mother (who today is still usually the custodial parent), has on the children, children often adopt their mother’s cause and cast off the father. The father, frustrated, tries harder to get back the relationship he used to have with his children. This only serves to further anger the children, who pull further and further away until they have no relationship at all with the father. The father is confused that the children who with whom he once had a close, loving relationship, now treat him poorly or with contempt. Eventually, the father gives up. He has been erased - he is no longer a factor in their lives.

Experts call it parental alienation. But parental alienation has not been generally accepted in the scientific community. For instance, it has not been adopted in the DSM, the diagnostic manual used by the mental health community. New York courts have rejected it, instead preferring to look at each case individually. The problem with this approach is that more often that not, the father is put under the microscope to determine why the children now revile him. Did he raise his voice at them during visitation? Say something inappropriate? Unless the father is like Jesus himself, there is usually something that a judge can call a reason. And unless the father is proactive and pushes the court to order visitation, nothing will happen. Although there is case law that holds that a mother should encourage visitation, there are a million ways a mother can show her children that she disapproves of the father.

The social implications are severe. The father has been ripped away, and the children suffer in a number of ways. Girls, in particular, are at risk. The literature is replete with studies showing that girls are at greater risk for teen pregnancies, drug abuse and other destructive behaviors. (See, e.g., http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2764264/). So why would women intentionally harm their children?

The answer is that some women hate their ex-spouse more than they love their children. And that is nothing less than child abuse.

On The Road Again - Relocation After Divorce

2011-02-19T15:34:00.002-08:00

We live in an increasingly mobile society. It is no longer common for a person to work for one employer for his or her entire career. People seek to relocate to another state, or even another country. There is no doubt that a relocation seriously disrupts the relationship between the non-custodial parent and the children. But such a relocation may be beneficial to the children for financial reasons. So what happens when the custodial spouse wants to relocate?

The answer is it depends. In 1996, the New York State Court of Appeals, in Tropea v. Tropea, overruled existing precedent and made it easier for the custodial parent to relocate. In Tropea, the court decided that the existing test of "exceptional circumstances" would no longer suffice. From now on, the party seeking to relocate must only show that the proposed move would be in the best interests of the children.

So what is the best interests of the children? Good question. There appears to be agreement among the trial courts that a desire to obtain a fresh start, or some other vague reason, is insufficient. On the other hand, a job offer coupled with increased financial security may be all that is needed. The trial court will look at the reason for move and whether the custodial parent has an actual plan, as well as the relationship between the non-custodial parent and the children. A new spouse or family in another state may be a factor, but certainly not a determinative one.

The bottom line is that the trial court has a huge amount of discretion is deciding this issue. The best interests of the children is, like art, in the eye of the beholder.

New York has No Fault Divorce - At Last

2010-08-16T09:06:00.000-07:00

Governor Patterson has just signed the no fault divorce bill, bringing New York in line with the other 49 states in the U.S. The bill establishes a ground for divorce based upon one spouse averring that the marriage has "irretrievably" broken down for at least six months. The text of the bill can be found here. This law will eliminate the legal blackmail described in an earlier post.

Two other bills were also signed by the Governor. The first requires payment of counsel and expert fees to the non-monied spouse. The text of the bill can be found here.

Finally, the Governor signed a controversial measure that provides guidelines for temporary maintenance payments while a divorce case proceeds in court. For the full text of that bill, click here.

I will be providing an in depth analysis of these new laws in a future post. Stay tuned.

My Divorce

2010-08-12T18:09:00.000-07:00

Perhaps you were wondering why I haven't posted since May of last year. The reason is simple - I myself was getting divorced, and my ex-wife's various attorneys were quoting my own blog against me.

Now that my case has settled (on the eve of trial and after 20 months of largely useless litigation), I am free to once more hold forth on the state of our system of divorce. Putting it bluntly - it sucks! As Alec Baldwin said in his book, the process is akin to being dragged by a pickup truck down a gravel road. My ex spent tens of thousands of dollars on attorneys fees for no reason at all. Delay after delay, and what she accomplished was to push us both to the brink of financial ruin. My kids suffered horribly, but no one - including my ex, seemed to care.

There simply has to be better way. And no, I am not taking about the no-fault and maintenance bills presently sitting on Governor Patterson's desk (the subject of a future post). I am taking about the system as a whole. It needs a complete overhaul.

Court Order? Who Cares?

2009-05-15T09:39:00.000-07:00

When I first began practicing law 26 years ago, a court order meant something. If a Judge told the client to do something, he or she did it. Period. My how the situation has changed.

Today, courts routinely issue orders in matrimonial litigation that are ignored by both the litigants and their lawyers. The consequences of refusing to comply? Nothing, and in some cases, a serious tactical advantage to boot.

Lets take an example. Courts routinely issue pendente lite orders, which require one side to pay certain monthly obligations of the parties until the trial. Such orders also include provisions for maintenance and child support, as well as legal fees. Typically, the husband will be directed to pay the carrying charges on the marital residence, as well as weekly payments of child support and/or maintenance. Recent appellate decisions also make an award of legal fees much more likely. Suppose the court orders the husband to pay the carrying charges, child support and the wife's legal fees. And further suppose that the husband refuses to do so? What happens?

The wife can move in court (at her expense) to compel compliance with the order. Due to hopelessly overcrowded court dockets, such motions can drag on for months. Eventually, there will be a further order directing the husband to comply with the first order. Suppose the husband continues to refuse to pay? Now the wife can move for contempt of court. The court will have to have a hearing on the issue of whether the husband is deliberately refusing to comply. The husband, of course, claims that he cannot comply, that he can't afford to pay, etc.

The motion for contempt, and the subsequent hearing, drag on for many more months. The overburdened judge really does not want to take up valuable court time doing a contempt hearing, especially since the husband can pay even after the hearing is over. So the case drags on and on.

Look what is happening. The husband, by refusing to comply with a valid court order, has a superior tactical advantage. The wife is struggling without necessary funds, and her lawyer is working without being paid and building up a big balance. Maybe the wife's lawyer moves to be relieved as counsel since she is not being paid. The merits of the case do not get addressed, since the case is mired in the side issue of the husband's refusal to pay. The husband is, in effect, starving the wife into a settlement on his terms.

Courts unwitting play along in this strategy when there is no penalty for ignoring a court order. And the crushing caseloads of judges today virtually dictate that not all orders will be enforced. The result is a serious injustice for the non-monied spouse.

Legal Blackmail

2009-03-28T14:54:00.000-07:00

Getting divorced? Help yourself to a bigger piece of the marital pie via legal blackmail, courtesy of the New York State Legislature. Let me explain.

New York has some of the most restrictive divorce laws in the country when it comes to grounds for divorce. There is no such thing as "irreconcilable differences" or anything remotely similar in New York. In New York, we do it the old fashioned way. The party wanting the divorce, typically the plaintiff, must prove "fault" to obtain a divorce. But what happens when there is no "fault" as defined by the Legislature? What if the parties are just miserable, or grew apart, or frequently argue?

This is where the blackmail comes in. If the requisite legal fault cannot be proven, the other side can blackmail the plaintiff by resisting the divorce unless the financial terms are made more favorable. If the plaintiff does not want to pay the blackmail, he or she will have to have a trial on grounds for divorce, a who-did-what-to-whom free for all that may result in a judge ruling that proper legal grounds have not been proven, and the parties have to stay married. Many opt to pay the blackmail.

This sad state of affairs is the result of the New York Legislature's continued inability to enact a no fault divorce law, something every other state in the U.S. seems to be able to do. Until a no fault divorce law is enacted, the legal blackmail will undoubtedly continue.

Who's Driving the Train?

2009-03-15T14:23:00.001-07:00

Want to guarantee misery and financial destruction from your divorce? Let someone else drive the train.

The train is a metaphor for your life, and the direction it is taking. Ideally, you should be the one determining where you are going and how you will get there. Your lawyer is the conductor, there to assist you in making choices about direction and destination. But you make the decisons.

Divorce is both an emotional and financial process. Sometimes, emotions take center stage, and determine your course of conduct. You want to make the other person pay for all the bad things he or she did. You want revenge, payback or to punish your soon-to-be ex. When you act on those emotions, you let someone else drive the train of your life.

Your lawyer will be only too happy to litigate small issues, or pursue strategies that will contribute little to the ultimate resolution of the case. Why not, the lawyer gets paid win or lose.

But if you want to minimize the damage to your finances and your life, you must put aside the emotion. You must make decisions based upon rational considerations and probable outcomes, not emotions. You must drive the train of your life yourself.

Why Do Cases Take So Long?

2009-03-12T14:01:00.000-07:00

I was sitting in court yesterday on a matrimonial matter. The courtroom was filled with lawyers, all waiting to see the Judge or the law secretary. It occurred to me that if you added up the amount being billed that morning, it was easily tens of thousands of dollars.

Some lawyers were sitting there reading the newspaper while billing at $375-400 per hour. Others were schmoozing with their friends or colleagues - again the meter was running. I felt badly for the clients that were there, watching their money being frittered away.

Why was there no sense of urgency? Why was everyone involved in the system content to while away the hours waiting? The simple answer is the billable hour. Who cares how long it takes to acomplish a particular task if the longer it takes the more money you make? The court calendars all cases for 9:30 AM. No one minds waiting, since the meter is running. There is no impetus to be efficient, because law is the only business in which the more efficient you are the LESS money you make.

There has to be a better way. You can bet that if all the lawyers in the room were getting a fixed fee for the appearance, they would be screaming about the delay. The same lack of urgency due to fees permates the entire legal system. Who cares how many times you have to come back to court if you are being paid by the hour?

Don't get me wrong. I bill by the hour. But I don't feel good about it. What do you think?